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Merits of Statutory Instruments Committee: Secondary Legislation

My Lords, many years ago I was asked by the then government Chief Whip, my noble friend Lord Denham, to serve on the Joint Committee on Statutory Instruments. Being a dutiful and relatively new Member of this House of course I agreed, only to find that on that committee therewas no discussion of the merits of the statutory instruments, but it was merely a question of looking at their vires. It was all what one might call pretty dry stuff. I think that it was the noble Lord, Lord Filkin, who referred to his own committee as being something of a gulag. Well, the Joint Committee on Statutory Instruments in those days was positively the outer Siberia of committees. I discovered that even more, like my noble friend Lord Jopling, many years later when I was Chief Whip and trying to find people to go on to that committee. One really had to approach them at a very early stage in their career in this House if they were to be persuaded to serve on it. I remember one or two keen enthusiasts. The noble Baroness, Lady Thomas of Winchester, will remember the late Lord Airedale, who was certainly a very enthusiastic member of that committee, and probably kept it going. But its particular problem was that it could not discuss the merits of the statutory instruments put before us. That is why I welcome the fact that this committee was created some years ago. I am very grateful for the explanation we have had from its chairman, the noble Lord, Lord Filkin, about exactly what it does and how it goes about it. I would like from these Benches to pay our tribute to the work of that committee. One particular innovation it has brought in in the way committees are run is that regular e-mails are sent out. I do not know whether they are sent to all Members of the House or only to those who request them—I must have requested them at some stage because I receive them—but to receive e-mails highlighting the statutory instruments to which the committee wants to draw the House’s attention is very useful, and leads one to go down to get hold of the statutory instrument if it is relevant to one’s sphere of work in the House. I remember, when first in opposition, sharingan office with my late friend Lord Mackay of Ardbrecknish, finding as one went through the Order Paper—this was especially true when we returned after the long Summer Recess—that a vast number of statutory instruments were laid. We had no idea where to start or how to set about doing the proper job that anyone in opposition or, for that matter, anyone in this House other than those on the government Front Benches, should do—the proper job of scrutinising what comes before us—because of the sheer size and number of instruments brought before the House. That brings me to my first point, which is that, as we all know, there is far too much delegated, secondary legislation. It is easy to say that; we have all said it; and those of us who have been in government, like my noble friends Lord Forsyth and Lord Jopling, have probably been as guilty as anyone else in putting it about. But it is still worth reminding the Government again, again and again that they are the guilty ones and must do something to reduce it. To give just one example from the primary legislation that we were debating only this afternoon, we have a Bill, the Tribunals, Courts and Enforcement Bill. It is a thick, heavy, large Bill. It has 290 pages; it has 140 clauses; it has 23 schedules. But it still manages rightly to be described by my noble friend Lord Kingsland at Second Reading, only a few hours ago, as a skeleton Bill. That was not denied by the Government. Far too much in it is left to secondary legislation. I thought that he was probably exaggerating, so I opened it at random. First, I opened page 130 in Schedule 5. I counted up to12 occurrences of: "““Rules may make provision for””." It may be quite appropriate that rules should be made, but it is jolly difficult to consider all these matters in advance of seeing the rules. Those may be matters that should quite rightly be left to secondary legislation. Turning to page 86 of the Bill—Clauses 103 and 104—in a short space, without trying to, I found ““Regulations may make”” or ““Regulations under this section”” four times. No doubt if we went through the rest of the Bill, we would find even more and I am sure that someone fairly assiduous will, by the time that the Bill goes into Committee, have countedthe number of order-making powers that the Government are giving themselves and can then offer some advice to the Merits of Statutory Instruments Committee on how much extra work that Bill will provide in due course. I hope that the Government realise that not only is that unsatisfactory in that it makes it harder for end-users to know what will come out, but it makes it very difficult to discuss the primary legislation—the Bill itself—when all we have is a skeleton on which will be tacked all the orders in due course. I hope that the Government will take some note of that. I welcome the fact that the Government responded to the 29th report of the Merits of Statutory Instruments Committee. I must say that I found it difficult to find that response. In fact, when I went to the Printed Paper Office, I was assured that it did not exist. I was given the response to another report. So, as I always do, I went to the Library, which is rather good at these things, and someone dug out the response for me. There it was in some other volume, where it was supposed to be. I had a sneaking suspicion that the Government would not mind if their response was not noticed that much. It has not received what one would call a wholehearted welcome. The words that I seem to remember being used by the noble Lord, Lord Filkin, were that the committee's response was ““somewhat lukewarm””. I think that another expression that he used was that the committee was ““not exactly overwhelmed”” by the government response. Perhaps I misunderstood him; but listening to the reaction of other noble Lords who have spoken in the debate, his words might have been an understatement. The noble Lord made, if I may say so, an excellent speech but one that was moderate, calm and considered. He was very careful, as he put it, not to name names. I was grateful that my noble friend Lord Jopling took it on himself to name names, and mentioned what we might call some of the guilty departments. It is quite right that they should be named, and one hopes that will have some effect. I have been only the second non-member of the committee to speak in this debate, and I am grateful to have been joined by my noble friend Lord Forsyth, who brings a great deal of experience to these matters. I think both of us would hope that many other Members of the House who are not members of the committee will take part in any future debate, or even if not taking part in the debate will listen to it. It is rather sad that it is happening late at night, and that there are very few Members here. We would like the Government to be held properly to account, and to hear their response in due course. My noble friend stressed, and the noble Baroness, Lady Maddock, echoed, the great importance of the report. Others have underlined the weakness of the Government’s response. I simply hope that we can now have a slightly stronger response from the Minister on behalf of the Government, and an assurance from him that, even after his response, the Government will continue to take notice of the report and to push all departments—in particular the guilty departments named by my noble friend Lord Jopling—to get their act together and try to ensure that there is proper consultation on statutory instruments, and that statutory instruments are properly drafted, properly brought before the House, and can be used by everyone, whether or not they are called stakeholders, in due course.